Merit Oil Heating Corp. v. Morfesis

91 A.D.2d 604, 456 N.Y.S.2d 424, 1982 N.Y. App. Div. LEXIS 19449

Opinion

— Appeal by defendant, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Beisheim, J.), dated September 21, 1981, as, upon vacating a default judgment taken against him, imposed costs as a condition of the vacatur. Order reversed insofar as appealed from, with $50 costs and disbursements, and the provision imposing costs is deleted. Litigants and their attorneys have a right to rely upon the observance of court rules which provide for the postponement of a trial based on the actual engagement of counsel in another court (see Rules of Practice, Supreme Court, Westchester County, 22 NYCRR 780.5 [a]; Bock v Bock, 132 App Div 921; 7 Carmody-Wait 2d, NY Prac, § 50:43). Hence, it was an abuse of discretion for the trial court to have imposed costs on the defendant as a condition for vacating the default caused by his attorney’s actual engagement at another trial (see New York Omnibus Corp. v Associated Transport, 76 NYS2d 602; Milton Holding Corp. v Gross, 193 NYS 75). Lazer, J. P., Mangano, Gibbons and Gulotta, JJ., concur.